New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 175174

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Dates of Hearing: February 15, 2019

March 4, 2019

April 8, 2019

April 25, 2019

June 24, 2019

July 11, 2019 Actual Record Close Date: January 8, 2020 Hearing Officer: Suzanne M. Carter Name of Person Who Appeared — February 15, 2019

For the Student:

ESQ., Attorney

ESQ., Attorney

Director at (Via Telephone)

For the Department of Education:

ESQ., Attorney

Name of Person Who Appeared —March 4, 2019

For the Student:

ESQ., Attorney

parent

Director at (Via Telephone)

For the Department of Education:

ESQ., Attorney

Name of Person Who Appeared —April 8, 2019

For the Student:

ESQ., Attorney

ESQ., Attorney

parent

For the Department of Education:

ESQ., Attorney

Name of Person Who Appeared —April 25, 2019

For the Student:

ESQ., Attorney

For the Department of Education:

ESQ., Attorney

Chairperson (Via Telephone)

Name of Person Who Appeared —June 24, 2019

For the Student:

ESQ., Attorney

For the Department of Education:

ESQ., Attorney

Case Manager at CBST (Via Telephone)

Name of Person Who Appeared —July 11, 2019

For the Student:

ESQ., Attorney

For the Department of Education:

ESQ., Attorney

Chairperson (Via Telephone)

speech Supervisor (Via Telephone)

Director (Via Telephone)

Manager of OT Services (Via Telephone)

INTRODUCTION

On July 12, 2018, I was appointed impartial hearing officer (THO) to conduct impartial hearing pursuant to 20 U.S.C. §1415, regarding the special education program of Student. By due process complaint dated July, 2018, Parents (singular or plural as necessary) allege the Department of Education (DOE or Department) failed to offer a free and appropriate education (FAPE) to Student for 2018/19 school year. Ex. A. Parents base their claim on an alleged procedurally and substantively flawed educational planning process.

DUE PROCESS COMPLAINT

For the 2017/18 school year (SY), Student attended ( ) at district expense. In the due process complaint, Parent also requested a hearing on pendency or stay-put seeking prospective payment “for the student's Full Tuition at (which includes academics, therapies and a 1: 1 professional during the school day) and special transportation accommodations ( which includes limited travel time of 60 minutes, wheelchairaccessible vehicle, A/C, flexible pick-up/drop-off schedule and a nurse, as well as private duty

1:1 nurse during the school day.” Ex. A. Parents had unilaterally placed Student at , even though was still available to the Student.

PROCEDURAL HISTORY

On August 14, 2018, a pendency hearing was held. the IHO denied pendency at on October 18, 2018 because Parent did not prove substantial similarity of the program to Student’s previous program at . However, special education transportation to with a transportation paraprofessional was ordered. On or about November 1, 2018, Parent requested a reopening of the pendency hearing pursuant to 8 NYCRR 276.8(a) alleging new and material evidence not available at the August 14, 2018 pendency hearing. In addition, Parent filed an appeal of the October 18, 2018 pendency order with the State Review Officer. A prehearing conference was held on November 2, 2018 and reopening of the pendency hearing was granted.

On December 11, 2018, a second pendency hearing was held. A second decision on pendency issued on February 3, 2019 requiring Parent to submit contemporaneously created records from showing when it began implementing each aspect of Student's pendency placement in full and Student's continued attendance at . It is unknown whether these records were submitted to the Department. Afterwards, impartial hearings on the substantive claims then occurred over four nonconsecutive days: February 15, March 4, April 8, April 25, and June 24, 2019. On February 15, 2019, Parent Exhibits C-R and DOE Exhibits 1-17 were admitted. On March 4, 2019, Ex. S and Ex. 20 were admitted. On June 24, 2019, Ex. 18-19 were admitted. On August 19, 2019, the parties submitted post-hearing briefs as Ex T. and Ex. 21, respectively. The record closed on January 8, 2020.

FINDINGS OF FACT

Conduct of the Impartial Hearing is Determined by the Hearing Officer

The Five-Day Exclusionary Rule

State regulations set forth the procedures for conducting an impartial hearing and address, in part, minimal process requirements that shall be afforded to both parties. 8 NYCRR 200.5[j].

Among other process rights, each party shall have an opportunity to present evidence, compel the attendance of witnesses, and to confront and question all witnesses. 8 NYCRR 200.5[j][3] [xii].

However, federal and State regulations provide that a party has the right to prohibit the introduction of evidence that has not been disclosed to that party at least five business days in advance of the impartial hearing. 34 CFR 300.512[a][3]; 8 NYCRR 200.5[j][3][xii].Courts have not enforced absolute adherence to the five-day rule for disclosure but have upheld the discretion of administrative hearing officers who consider factors such as the conditions resulting in the untimely disclosure, the need for a minimally adequate record upon which to base a decision, the effect upon the parties' respective right to due process, and the effect upon the timely, efficient, and fair conduct of the proceeding. See New Milford Bd. of Educ. v. C.R., 431 Fed. App'x 157, 161 (3d Cir. June 14, 2011); L.J. v. Audubon Bd. of Educ., 2008 WL 4276908, at *4-*5 (D.N.J. Sept. 10, 2008), aff'd, 373 Fed. App'x 294 (3d Cir. Apr. 9, 2010); The IHO set a disclosure schedule for witnesses, documents, and objections due to the contentious posture of the litigants. Tr. 127-28. At hearing on February 15, 2019, the DOE admitted failed to timely disclose its documents and witnesses for various reasons. Tr. 140-43, 148-49. Therefore, it was precluded from presenting witnesses at Parent’s behest. However, the IHO also denied Parent’s motion for summary judgment on Prong I. Rebuttal testimony

Rebuttal testimony is discretionary with the finder of fact and should be overturned on appeal absent a clear abuse of discretion. Wilmot v Methodist Hosp., 202 AD2d 304, 304 (1st Dept 1994). It should not consist of anything that could have been offered in the case-in-chief. Its function is to explain, repel, counteract or disprove evidence or theory of adverse party (examples: evidence that tends to disprove bias, surprise evidence was presented by the defendants; evidence was unavailable through no fault of the plaintiffs). It is an abuse of discretion for the hearing officer to allow rebuttal evidence if: (a) it surprises the other party; and (b) the opposing party doesn’t have an opportunity to meet the proof; and (c) there is a detriment to the opposing party because of the order in which the evidence was introduced; (d) it is unfair, (ec) it confuses the issues, and (f) it is repetitive evidence. A change in litigation strategy is not permitted in rebuttal. Rebuttal testimony is not offered for just rebutting cross examination.

The DOE proffered that rebuttal testimony was necessary to disprove that is an appropriate placement for Student for which the Parent’s bears the burden of proof. In this particular line of cases, the SRO has been seeking a well-developed record for review. Therefore, I permitted rebuttal testimony as described in the Department’s letter over Parent’s objections.

Ex. 20.

The following facts are not in dispute. Student is entitled to special education in a 12-month program and special education transportation with limited travel time, wheelchairaccessible vehicle, and air conditioning.

The following broad categories are in dispute concerning development of an IEP for the 2018/19 SY: composition of Committee on Special Education (CSE), meeting notices, disability classification, programming, quantity and duration of related services, management needs, and individual in-school nurse.

At all times beginning with attempts to schedule the annual review meeting, Parents were represented by legal counsel from the . From the onset of the case, the THO frequently reminded the parties of the need for a well-developed record, including credible witness testimony and documentary evidence to assist the trier of fact.

I. The Department Did Not Provide Student with a FAPE for 2018/19 SY

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. Educ. Law § 4404[1 |[c]; RE. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 (2d Cir. 2012). The hearing is governed by the Burlington/Carter test, which has three prongs: “(1) the DOE must establish that the student’s IEP actually provided a FAPE; should the DOE fail to meet that burden, the parents are entitled to reimbursement if (2) they establish that their unilateral placement was appropriate and (3) the equities favor them.” M.W. v. New York City Dep’t of Educ., 725 F.3d 131, 135 (2d Cir. N.Y.

2013) (footnote and citations omitted). To reach a determination, the hearing officer conducts a two-part inquiry that first assesses procedure and second addresses substance to determine whether the state has complied with the IDEA.

Not every procedural error renders an IEP inadequate. A.C. ex rel. M.C. v. Bd. of Educ., 553 F.3d 165, 172 (2d Cir. 2009) (citation omitted). For parental reimbursement, procedural violations entitle parents to reimbursement only if the violations “impeded the child’s right to a [FAPE],” “significantly impeded the parents’ opportunity to participate in the decision making process,” or “caused a deprivation of educational benefits.” /d. (citations omitted) (emphasis added). However, multiple procedural violations may cumulatively result in the denial of a FAPE even if individual violations do not. /d. (citation omitted). “Substantive inadequacy automatically entitles the parents to reimbursement” but “the placement must be appropriate and equitable considerations favor reimbursement.” T.M. ex rel. A.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 160 (2d Cir. 2014) (citations omitted) (internal quotation marks omitted)).

To be substantively adequate, an IEP must be reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances. Endrew F. v. Douglas Cnty. Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017). TEP development is fact-intensive. /d. It requires school officials with the prerequisite expertise and input from the parent. /d. “The IEP must aim to enable the child to make progress.” /d. “A focus on the particular child is at the core of the IDEA. The instruction offered must be ‘specially designed’ to meet a child’s “unique needs’ through an’[i|ndividualized education program.’” /d. (citation omitted). An IEP is not a form document with checkboxes. /d. It is constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth. /d. (citation omitted).

Therefore, “[a] school district fulfills its substantive obligations under the IDEA if it provides an IEP that is likely to produce progress, not regression, and if the IEP affords the student with an opportunity greater than mere trivial advancement,” 4.M. v. N.Y. City Dep’t of Educ., 845 F.3d 523, 541 (2d Cir. 2017). And, similar to the qualification in the standard announced by the Supreme Court in Endrew F., the Second Circuit has long held that “a child’s academic progress must be viewed in light of the limitations imposed by the child’s disability.” Mrs. B., v. Milford

Bd. of Educ., 103 F.3d 1114, 1121 (2d Cir. 1997) (citation omitted).

In its closing brief, the Department submits that the IEP program developed at the c provided the student with a FAPE; that the IEP provided the student with appropriate annual goals; that the IEP appropriately addressed the student’s management needs; and it provided the student with an appropriate level of related services.

At the June 18, 2018 meeting, the team members consisted of a district representative and special education teacher. Ex. 1-14. Parents declined to participate allegedly because the teacher would not be available. Tr. 451; Ex. 2. Student’s private school teachers and providers did not participate because Parents withheld consent for their participation. Tr. 452; Ex. 2-1.

Therefore, the team held the meeting without the Parents after multiple attempts to include them.

For the 2018 summer session, a 12:1:4 classroom placement was recommended. Ex. 1.

For placement beginning September 2018, Student was deferred to the Central Based Support Team (CBST) that would seek an approved nonpublic school placement. /d. This outcome is precisely what Parents requested in their June 21, 2018 letter to the CSE. Ex. O.

However, I find the deferral to CBST for a 6:1:1 program beginning September 2018 was inappropriate, thus a denial of FAPE. The Student should have been placed in a 12:1+4 classroom for 12 months. This ratio is for students who require a program primarily of habilitation and treatment, including training in daily living skills and the development of communication skills, sensory stimulation and therapeutic interventions. 8 NYCRR § 200.6(h).

Id. Management needs are defined by State regulations as "the nature of and degree to which environmental modifications and human or material resources are required to enable the student to benefit from instruction" and shall be determined in accordance with the factors identified in the areas of academic achievement, functional performance and learning characteristics, and social and physical development. 8 NYCRR 200.1[ww][3][i][d].

Both Parents and DOE agree the Student has highly intensive management needs requiring a high degree of individualized attention and intervention to maintain her physical well-being throughout the day.” Ex. E-23; Tr. 268-271, 407, 519-20. However, the Parents' oversimplified argument that the student should be placed in a 6: 1 + 1 special class due to "highly intensive" needs overlooks that the highly intensive needs they speak of derive from the fact that the student has severe multiple disabilities, has needs for programming in the areas of habilitation and treatment, needs a staff/student ratio of at least one staff person to three students, and requires services from additional staff that are teachers, supplementary school personnel, and related service providers. Thus the 12:1+4 special class ratio for students with severe multiple disabilities, called for in State regulation, is precisely the type of programing that will address this student's unique needs. See NYCRR 200.6 [h][4][iii]. A greater variety of school personnel typically work in a 12:1+4 special class setting as opposed to a 6:1+1 special class.

Il. was not an appropriate placement in July 2018

It is the Parents’ burden of proof on appropriateness of the placement. Therefore, a private school placement must be “proper under the Act.” Florence County Sch. Dist. IV v. Shannon Carter, 510 U.S. 7, 12,15) (1993); School Comm. of Burlington v. Department of Ed.

of Mass., 471 U.S. 359, 370 (1985), i.e., the private school offered an educational program which met the student’s special education needs. See Gagliardo v. Arlington Central Sch. Dist., 489 F.3d 105 (2d Cir. 2007). A parent’s failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement. Carter, 510 U.S. at 14. The private school need not employ certified special education teachers or have its own IEP for the student. Carter, 510 U.S. at 13-14. The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. No one factor satisfies the standard. But a unilateral private placement is only appropriate if it provides "education instruction specifically designed to meet the unique needs of a handicapped child." Frank G. v. Bd. of Educ., 459 F.3d 356, 365 (2d Cir.2006) (quoting Rowley, 458 U.S. at 188-89). Evidence of success is not considered. See

Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 (6th Cir. 2003) (“evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA’’).

A. Academic philosophy of The hearing record includes an brochure with a “Program Description” that details the mission statement and core values and also provides information regarding admissions process and an overview of the program for the 2018-19 school year. Ex. E. According to the program description, is an independent, not-for-profit educational organization . . . [that] ensure[s] the families, and most importantly, our students with brain injury and brain-based disorders have access to a highly specialized educational opportunity based on the individual needs of each student. It is not been vetted by any state or regional credentialing agency. The educational director had “no idea” of whether had applied to the New York State Education Department or New York State Board of Regents for accreditation. Tr. 311.

Academics are described as follows: “The educational program focuses on the development of academic, cognitive and social skills aligned with each student’s Individualized Education Program (IEP) designed by . All skills and strategies are taught through Direct

Instruction.” /d. But, the range of neurologic sequelae following is too diverse to prescribe specific intervention strategies that work for all students, and there are few empirical studies that validate specific interventions for students with

B. Student’s individual program and schedule

Consideration should be given to the length of school day that students can tolerate, their nutritional needs, and their fatigue levels and need for rest breaks. As shown in Exhibit C, the Student was to have the following program at ostensibly starting July 2018: 6:1:1 special education class; Physical therapy — 1:1 — 5x/week, 60-minute sessions; Occupational therapy — 1:1 — 3x/week, 60-minute sessions;

Vision education services — 1:1 — 3x/week, 60-minute sessions; Speech/language therapy — 1:1 — 5x/week, 60-minute sessions; Assistive technology services — 1:1 — 1x/week, 60-minute session; Parent counseling and training — 1x/month, 60-minute session

ACC/SGD Dynavox

1:1 Nurse

1:1 paraprofessional

Special transportation services with nurse, limited travel time of 60 minutes, air conditioning, a wheelchair-accessible vehicle

Exhibit F shows Student’s schedule for an extended school day. She receives only 30 minutes of direct instruction per day. Tr. 270. Related services are done on a push-in and pull-out model.

Ex. E-5; Tr. 213. Here, it appears little, if any, consideration was given to Student’s age, fragile medical conditions, or documented issues with fatigue. The IEP and quarterly report document seven instances of Student’s inability to sustain attention and demonstrate consistency in her skills due to fatigue and alertness. Ex. C, H. For example, “When Student is not fatigued, she is motivated to activate a single-panel switch and will reach/extend towards the direction of the switch.” Ex. C. “When motivated and not fatigued, [the student will use her left/right hands to express “‘yes” and “no”. Jd. Student’s performance is dependent on alertness and motivation.”

Ex. H.

Finally, it was not established when the Student’s vision education services were fully implemented as the school lacked providers in July 2018. The second order on pendency dated February 3, 2019 directed the Parent to provide contemporaneously created records for vision services. Yet, on March 4, 2019, Ms. testified that she was not sure if such records existed. Tr. 362. Lack of records undermines Parent’s case.

C. Appropriateness of Student’s related services and goals

Speech language therapy

The DOE presented , supervisor of speech and language services for the Department’s . She provided opinion evidence on the 2018 IEP, class schedule, and quarterly progress report. Ex, C, F, H. Although speech language therapy (SLT) mandates are individually driven, she opined the mandate of five times weekly for 60 minutes for this student was “overwhelming”. Tr. 829. She noted the IEP did not contain any baseline measures of the student’s existing skills, with which to provide a speech therapist with any plan to develop next steps with respect to the student’s speech-language therapy program; that the proposed goals for the student were not measurable; that the proposed goals were too broad; and were not designed to allow the student to function independently.

It was alarming that some of the proposed goals would place the Student at risk for a medical incident. For example, Ms. would not recommend the annual goal and the short-term objectives of the taste trials because Student

Tr.853; Ex. C-26.

Tr. 854.

In addition, other speech goals were deficient because it could not be determined how Student would use her communication skills with peers and in social situations. Tr. 864. Parent did not refute Ms. ’ testimony on cross-examination.

, director of , provided opinion evidence on the 2018 IEP and its vision goals. The first vision goal was “confusing” because the trials and benchmarks did not match mathematically. Tr. 786. It was reported Student achieved 80% accuracy on the first two benchmarks by completing 2/5 trials within 45 seconds and 3/5 trials within 35 seconds. Ex. C-7

The second goal was insufficient because it “doesn't actually make sense howa child would visually locate something that's being named.” Tr. 788. It was the Student achieved 80% accuracy by completely 2/5 and 3/5 trials and partially achieved the third benchmark (4/5 trials)

with 66% accuracy. Likewise, for the third goal it was reported Student achieved 80% accuracy with 2/5 and 3/5 trials. Tr. 789; Ex. C7-8. The trial attempts did not equal 80% accuracy. Mr.

was also concerned about the 60-minute sessions because Student could develop vision fatigue. Tr. 802.

Finally, when questioned about regression due to loss of services for a two-month period, Mr. replied, “If two months had been missed, I believe that a child could regress, especially a child with cortical visual impairment. However, the amount of regression would not be improved by doing an additional two months . . . or an increase in the service.” Tr.

813. “Adding make-ups along with the services they're already getting could backfire in the sense that there's now too many at once and especially considering the other services the child might get.” Tr. 814. Session notes would best tell what took place with the child. Tr. 815. But

Parent did not disclose any. Nor did Parent refute any of Mr. ’s testimony on cross-examination.

Occupational Therapy , manager of occupational therapy services, provided opinion evidence on the Student’s occupational therapy (OT) goals. School-based OT is designed for a child to access academic curriculum and other school functions. Tr. 885. The goals for the Student were inappropriate. For example, the short-term objective goal of threading her arm through a jacket had maximized at 50 percent after one and half years of working on it. Tr. 908; Ex. H. The goal was a hardship and better addressed outside school so that the Student could focus on academics.

Tr. 909. The Student’s goal for an adaptive toileting schedule of three times per week was also not appropriate for school-based physical therapy. Tr. 907. Lastly, some of the OT tasks such as range of motion could be taught to paraprofessionals to work with the child, thus reducing the time spent away from the classroom. Tr. 922.

Mr. also opined that fatigue was a concern for the Student because she received OT one hour daily five days per week. Tr. 917, 919. She could be required to perform activities at a level she has not attained. Tr. 919. Student also receives 30 minutes of OT twice weekly at home on the same days she has OT in school as her Parent testified. Tr. 527. Parent did not refute

Mr. ’s testimony on cross-examination.

In summary, the program designed for Student was not appropriate because it lacked all components of Student’s programming when it opened its doors in July 2018. The related services were excessive given Student’s young age and well-documented tendency for fatigue. Most disturbing was that the speech language goals

Itl. Equitable considerations do not favor Parents

Burden of proof is upon the parents on the third prong of the Carter/Burlington analysis.

With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to any actions the parents took. E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 461 (2d Cir. 2014) (identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school). Lack of cooperation also is “[i]mportant to the equitable consideration [] whether the parents obstructed or were uncooperative in the school district’s efforts to meet its obligations under the IDEA.” C.L. v. Scarsdale Union Free School Dist., 744 F.3d, 840 (2d Cir. 2014).

A. Removal of Student from Parent testified Student was removed from because it was “transitioning to a differential sort of organization” and there were “rude and aggressive conversations with parents.” Tr. 506. Based on Parent’s testimony, the Student was removed from and placed at without good cause. Tr. 511-16.

B. Tuition costs

Maximization is not required. “The appropriate amount [of reimbursement] bears a relationship to the quantum of services that the state would have been required to furnish, as well as the fees charged by [the parents’ chosen] providers for their services” rather than requiring reimbursement for all services the parents chose to provide. L.K. v. N.Y.C. Dep’t of Educ., 674 F.

App’x 100, 101 (2d Cir. 2017) (citing Still v. DeBuono, 101 F.3d 888, 893 (2d Cir. 1996)).

Parent seeks tuition funding of $148,000.00. Parent has not made any tuition payments to . Tr. 476.

The question is whether tuition is reasonable. I find that it is not for the following reasons. The Student receives just 8.5 hours of academics per week far less than what be provided had Student attended a public school placement. The remainder of her time is spent in related services that exceed the amount recommended in the June 2018 IEP. Given Student’s complicating medical conditions and her propensity for fatigue, it is debatable whether an extended school day program is appropriate for her.

C. Related services

Pursuant to the contract, Parent must seek RSAs or related service authorizations from DOE. Ex. J. The related service providers are salaried employees, not independent contractors. This requirement appears to be “double dipping” and it cannot be condoned by charging hourly rates for related services that were provided by full-time salaried employees during the school day. See Application of a Student with a Disability, Appeal No. 13-073 (denying reimbursement for related services because school was charging hourly rates for related services provided by full-time salaried employees during school day).

D. Cooperation of Parent

Assessing the credibility of a party’s statements and the weight of contradictory evidence may only be evaluated by a finder of fact." Scott v. Coughlin, 344 F.3d 282, 290-91 (2d Cir.

2003). There is no basis to disturb the following credibility assessment. See P.C. v. Oceanside

Union Free Sch. Dist., 818 F. Supp. 2d 516, 524 (E.D.N.Y. 2011) (citations omitted) (favoring live testimony for credibility finding). Parent testified she did not attend the March 22,2018 TEP meeting because a school physician would not present in person to “see what’s happening with [Student].” Tr. 439. There is no regulation requiring the school physician to attend in person.

Furthermore, the Student never attended any IEP meetings as shown in the exhibits annexed to the Department closing brief. Ex. T.

For the June 14, 2018 IEP meeting, Parent testified she did not attend because either the Student’s teacher was attending another meeting or the class was not at school. Tr. 446. Next, for the June 18, 2018 meeting, Parent testified the teacher was allegedly unavailable. Tr. 455.

However, as discussed above, Parent withheld consent for Student’s teacher to participate in the IEP meeting.

Student’s case was deferred to CBST. Parent was notified of two potential nonpublic school placements as the CBST case manager testified. Tr. 724. According to information provided by the two potential schools, Parent did not schedule appointments to visit either one.

Tr. 725-26. Ex. 18, 19. Parent alleged the travel time to the was too great even though she did not visit it. Tr. 528. Notably Parent did not testify that she visited the summer placement and rejected it.

Parents failed to attend three IEP meetings that were scheduled at her desired times for baseless reasons and withheld consent for educators to participate. Counsel’s letters to the CSE made unreasonable demands in violation of the requirement to scheduling the meeting at a mutually agreed on time and place. Ex. M, N. See CFR § 300.322. These tactics were designed to circumvent the IEP process in hopes achieving tuition funding of $148,000 for a dubious academic program and excessive related services through impartial hearing, state officer review, or district court. Therefore, I find that Parent and Parent’s counsel did not fully cooperate with Student’s educational planning.

ORDER

1. Tuition for is denied.

2. Transportation cost for is denied

3. Related services cost for is denied.

Dated: January 8, 2020 /s/Suzanne M. Carter

Suzanne M. Carter, ESQ.

Impartial Hearing Officer

PLEASE TAKE NOTICE

The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act. The Department of Education has designated the New York City Law Department to accept service of papers on its behalf, including appeals of decisions of Impartial Hearing Officers. Such service is made at 100 Church Street, New York, NY 10007 at the Messenger Center.

DOCUMENTATION ENTERED INTO EVIDENCE

EX. DATE DESCRIPTION PAGES

07/09/2018 Due Process Complaint IH # 175174

05/17/2018 CPSE IEP, dated 10/13/16 20

12/10/2018 IEP 2018-19 37

06/09/2017 IEP 2017-18 39

2018-19 Program Description 2018-19 15

07/09/2018 Class Schedule 2018-19

01/12/2018 Quarterly Progress Report 13

10/30/2018 Quarterly Progress Report

06/05/2018 Enrollment Contract

05/15/2018 Transportation Contract 2018-19 last visited NYC DOE Family Guide to Special Education

12/05/2018 Services for School Age Children (pp. 1, 27) last visited NYC DOE Special Education Services

12/05/2018 Packet — Figure 2 (pp. 1, 35) M Letter from Parents’ Attorney to CSE

05/03/2018 Chairperson Requesting

Reconvene IEP Meeting (for SY 2017-18) and Full Committee Annual IEP Meeting (for SY 2018-19)

06/12/2018 Letter from Parents’ Attorney to CSE — Chairperson

Requesting

For Reconvene IEP Meeting (for SY 2018-19)

06/21/2018 Ten-Day Notice

Multiple NYC DOE Medical Forms 2017-18 11

Multiple NYC DOE Medical Forms 2018-19 25

08/21/2015 Email Correspondence within NYC DOE Office of Legal Services

3/1/19 Letter in opposition to rebuttal testimony (sent 12/29/19 via email to Evidence Unit)

8/19/19 Closing brief (sent 12/29/19 via email to Evidence 24

Unit) Department exhibits

Exhibit Date Title/Name Pages

CBFOWNH

06/18/2018

NBRWAOeNOBKYH

IEP AK

06/18/2018 Meeting Minutes

02/14/2018 Notice of Meeting

03/01/2018 Notice of Meeting

05/21/2018 Notice of Meeting

06/11/2018 Notice of Meeting

01/25/2018 Classroom Observation

05/22/2018 Prior Written Notice

06/19/2018 Prior Written Notice

06/19/2018 School Location Letter

NRReTwnFSAeBWwrNKeCoa

12/19/2017 Consent for Testing

06/12/2018 CSE communication

05/23/2018 CSE communication

Various CSE communication

05/11/2018 Parent communication to CSE

07/02/2018 CBST communication

Various SESIS events log Go

Various CBST manager case notes

Various CBST response forms

2/25/19 Letter in support of rebuttal testimony

8/19/19 Closing brief (sent 12/29/19 via email to ON Evidence Unit)